Majority of anti-AAPI hate incidents are not a hate crime. How are we dealing with them?
Kristine PhillipsWASHINGTON – Jasmine Li's daughter ignored the group of boys. The fifth grader was standing at the curb outside her Southern California elementary school one day in October, waiting for her parents to pick her up, when they asked her if she had COVID-19.
A few minutes later, she walked to the school's front office to see if one of the staffers could call her parents. She passed by a bigger group of boys, including the ones who taunted her earlier.
They chanted "COVID" as she walked by. Again, she ignored them.
"She said she was almost in tears when she got to the front office," Li said. "You would think that school is the one place where you don't have to worry about this issue … but unfortunately, that's not the case."
Li, a Chinese American living in Aliso Viejo, Calif., has heard stories of harassment and attacks against Asian American and Pacific Islanders since the start of the pandemic last year. But she never thought it would happen to her child, at her school, in a state with the largest Asian population in the country.
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"It's really disheartening to hear my daughter, a 10-year-old, getting this experience at school," Li said, "the one place where they should be safe and safe from harassment." Li asked USA TODAY not to name her daughter or her school for fear of retaliation.
There have been thousands of similar stories of bias- or hate-motivated conduct fueled by a false rhetoric that blamed the pandemic on the AAPI community. Though the news has been dominated by videos of violent and sometimes deadly attacks, less attention has been paid to this vast gray area of verbal harassment that is neither a criminal nor civil rights violation.
Because such incidents are largely protected speech, law enforcement can't take action unless there are threats. Because they don't usually fall under the types of discrimination or harassment barred under civil rights laws, there's not much recourse in civil court either, experts said.
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The majority of hate incidents reported since last year fall under this category. Advocates and government officials said this shows the need to focus more on education and less on punishment.
"I realize that in some instances, punishment is necessary," said Ross Chun, a city councilman in Aliso Viejo. "But in an era where people are hypersensitive about freedom of speech, it's important to find a solution, a teaching moment, where people can participate and benefit."
Need for education, data, resources
Chun learned of the incident with Li's daughter from other parents, some of whom wanted the students to be punished.
Chun, who created a video to teach students about diversity after the incident, said, "In these instances, especially at a young age, I think the lesson is far more effective than a punishment that will simply breed resentment and anger."
Manjusha Kulkarni, co-founder of the nonprofit Stop AAPI Hate, said there should be an education campaign from all levels of government.
"We're not in any way advocating that individuals who engage simply in name calling or making racist comments, that they be civilly or criminally prosecuted," Kulkarni said. "You need a public education campaign to explain why is that harmful. What does that do when you make those comments?"
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The rise in hate incidents against the AAPI community exposed gaps in the country's understanding of how often they occur, Kulkarni said.
The federal government has collected hate crime reports since the mid-1990s, but data is limited only to hate crimes that local and state law enforcement agencies voluntarily report to the FBI. Until Stop AAPI Hate and other advocacy groups began collecting reports of hate incidents last year, there wasn't a nationwide effort to track incidents that don't rise to the level of crimes.
Stop AAPI hate received more than 6,600 reports of anti-AAPI hate incidents from March 2020 to March 2021. About 65% are verbal harassment. Incidents in which criminal charges or civil actions might be justified comprise only small portions: 12% were physical assault, and 10% were civil rights violations such as workplace discrimination and refusal of service.
Programs that provide services to victims and collect data on hate incidents exist in some cities; advocates said these should be mirrored across the country.
In New York City, a group called Safe Horizon, which provides resources and counseling to crime and abuse victims, reports hate incidents to the city's human rights commission for data gathering.
"With data, it produces resources and education for the community," said Queenie Ng, a clinical forensic specialist at Safe Horizon.
'One gaping hole'
Ng said she has been called derogatory names so many times since last year that she's lost count.
Early in the pandemic, she said, a city bus driver pulled up and yelled a racial slur at her as she was standing near Central Park in Manhattan. Another time, somebody called her the same racial slur in a building lobby.
Such "sidewalk harassment" is "one gaping hole" in the government's power to do anything, said William Yeomans, a former Justice Department attorney who spent nearly three decades enforcing civil rights laws and prosecuting hate crimes and others.
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"If somebody calls somebody names on the street and harasses them, the federal government is not authorized to do anything about that," Yeomans said. "There are serious First Amendment consequences."
Absent any threats or physical harm, the government has limited power to do anything, no matter how ugly or hurtful the speech is. Even if the recipient of verbal abuse felt threatened or intimidated, charging an instigator who did not make an explicit threat is challenging because prosecutors must prove that the harasser intended to threaten someone, Yeomans said.
What governments can do
The federal government has several tools in its arsenal to deal with discrimination and abusive treatment based on race, gender and other factors.
The Justice Department can sue public employers for discrimination. It can sue landlords who subject tenants to abusive or discriminatory treatment. It can enforce anti-discrimination laws at schools that receive federal funds. Restaurants, theaters and hotels can be sued under the Civil Rights Act if they deprive someone of service based on their race, color, religion or national origin.
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The federal government can require public institutions that receive federal dollars to conduct trainings on diversity and tolerance. It can provide funding to train police officers on how to respond to hate incidents and fight hate crime within their ranks, Yeomans said.
Attorney General Merrick Garland directed the Justice Department to examine the use of civil enforcement to respond to incidents of bias that do not rise to actual hate crimes.
In California, laws provide civil remedies for someone threatened with violence because of their race, gender identity, religion or other factors. Calling someone a racial slur while intimidating, coercing or threatening that person could violate state law, California Attorney General Rob Bonta said.
Bonta announced the creation of a bureau within his office that will focus on a wide array of racial justice issues.
"I think it's really important to use every tool in the toolbox. The rise in hate comes in different forms, from verbal abuse and spitting on members of the AAPI community, to shoving them down, to punching them in the face, slashing them across the face and to murder," Bonta said. "There's different approaches within the law that can be marshaled."